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The debate centres on the commencement of clause 62. In Committee, the Minister suggested a delay of perhaps six or 12 months that seemed to be based on legal advice on clause 62(3), which deals with landowners and people who have a legitimate need to take a vehicle up a byway. I am grateful to the Minister for the fact that he very kindly made available his legal advice to all members of the Committee soon after its proceedings begansomething that the Government do not always dothus giving the green lanes protection group and the Opposition the opportunity to take our own legal advice on the proposal.
Under amendments Nos. 6 and 7, the commencement of clause 62 would be moved to the date of publication of the Bill. There is an argument that that would be retrospectivean argument cited by the Minister in Committee. I wish to quote the advice given to the green lanes protection group by its counsel. Its counsel
"amount to nothing more than an initiation of a procedure of ascertainment. That procedure has nothing to do with the creation of rights, and ascertainment is in any case available by other means. Halsbury's Laws state that retrospection occurs when an enactment 'changes the relevant law with effect from a time earlier than the enactment's commencement' which is not the case here. The NERC Bill simply intercepts an ascertainment procedure and extinguishes such vehicular rights as may exist at the date of commencement. That is consistent with the aims of the Bill and does not impinge retrospectively on those rights."
I think that the Minister has already had sight of that advice, and there is more of it. However, that clearly addresses the issue of retrospection, and my hon. Friend the shadow Attorney-General entirely concurs with that advice.
I am grateful to have worked with the hon. Gentleman on that point. Of course, I have seen the advice. The Minister has seen it, and he very kindly met
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us to discuss it. May I make the case even more strongly? Every legal expert who has been consulted on that advice concurs with that opinion. To put it in a nutshell, those who make a claim do just that. The claim is not established, so there is no element of retrospection in this matter.
Mr. Paice: I am very grateful as always on this matter to the hon. Gentleman. He has been even more proactivedare I say?on the subject over the past few months. I am sorry that I was unable to be with him at the meeting to which he referred. He is right that all the advice that we have received states that retrospection is not a problem. So our contention is that commencement should at least go back to the date when the Government published the Bill: 19 May 2005. That is the purpose of amendments Nos. 6 and 7. If the Minister were to accept that contention, it would dramatically reduce the problem to which I shall refer in a moment and which new clause 4 addresses.
The legal advice to the Minister also suggests, however, that clause 62(3), which will replace the public right with a private right, engages the Human Rights Act 1998. Our adviceI use the word "our" widely and include the hon. Member for Sherwoodis that any such suggestion could be resolved by amendments Nos. 12 and 13, which would slightly alter the wording of clause 62(3). If the Minister were to accept those amendments, he would clear the way for the earlier commencement. He could not only drop his original plan for a six or 12 month delay, but commence the provision on 19 May, as I have said.
That date would be appropriate, although there are of course arguments for an earlier date. It could be 20 January, which is when the Government announced the conclusions of their consultation; it could be December 2003, the date when the Government's consultation actually began and raised the issue that the historical right of users of mechanised vehicles to claim a BOAT might be curtailed. There is a range of dates, but given the concerns expressed on both sides of the House in the past few minutes, the earlier the date, the more everybody would be satisfied. Our amendments simply go back to the date of the Bill's publication, but if the Minister fully accepted the strength of my arguments and wanted to go for an earlier date I should support him to the hilt, and I am sure that my right hon. and hon. Friends would do the same.
The fallback would be that commencement was at Royal Assent, which is the purpose of amendment No. 11. The very least we should expect from the Minister is that he agree to that, although he should consider and agree one of the earlier dates as, for the reasons that I set out, retrospection is not an issue. However, whenever commencement takes place there will remain the issue of the large number of outstanding claims to which I referredabout 2,000which can all be traced back to the Government's announcement in December 2003 that they were proposing to close the opportunity to use historical vehicle rights.
The picture is varied across the counties and in different parts of the country. The main problem is in Dorset, the county of my right hon. Friend the Member for West Dorset (Mr. Letwin), and in Derbyshire, Hampshire, Somerset and Wiltshire. The 2,000 existing claims are only part of the problem. I have already
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referred to the quotes from the trail riders website, which illustrate that a further large number of claims are in the pipeline waiting to be launcheddare I say it?tomorrow. If all those cases, or even a significant proportion of them, are recorded as BOATs the whole purport of clause 62 is useless. One is tempted to say that they would drive a coach and horses, or a tank or motorised vehicle, through the argument. The whole purpose of what the Minister is trying to do, which I think the whole House supports, would be completely destroyed if all those applications were allowed to be recorded as rights of way.
The legal advice to the green lanes protection group is that removal of a public right does not engage the Human Rights Act. That advice was also supplied to the Government. Their own advice does not make that suggestion so there is no contradiction; the Government are not making that suggestion. However, I wanted to make that point clear.
The traffic regulation mechanism has been in existence for many years, since 1984, for local authorities and the Government have already, in new clause 11, given that power to national parks authorities. The whole House welcomes that. The principle of using a traffic regulation order to deal with abuse of byways, where they have become impassable and there are problems for pedestrians or horse riders, is already engaged in law. The issue of human rights cannot be paraded as an argument against new clause 4; nor can retrospection, because traffic regulation orders exist already.
We need to address the problem that I have described: all the applications that have been made since the date when the Government announced the conclusion of their consultations. One could choose other dates but that date is reasonable for the purpose, although I would happily accept December 2003 if the Government agreed. New clause 4 would require the Secretary of State to review all those applications within three years of commencement, whenever they were made, as long as it was after the date and before commencement, and, more important, whenever they were resolved, whether that was before the Bill commencednot that many would be, because we know that local authorities are not hurrying to do soor at some stage in the future. If they were resolved and recorded based on an application made between 20 January 2005 and commencement they would fall to be reviewed by the Secretary of State within three years.
The applications would be reviewed against two criteria: damage to the natural environment, which is the theme of the whole Bill; and the impact that the use of the byway by mechanically propelled vehicles would have on other users, in particular whether that would create a danger to other users or would restrict use by other users. If the application fell foul of either of those criteria, the Secretary of State would be compelled to issue a traffic regulation order.
It has been drawn to my attention that there may be a technical problem in the drafting of new clause 4 and that the provision should be more specific about the format of the traffic regulation order. The intention is that the order would prohibit the use of mechanised vehicles on the byway, although I readily accept that that purpose may not be absolutely clear. However, the new clause is a sensible approach, which does not engage
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human rights or fall foul of retrospection, to deal with what is widely recognised as a serious loophole in the Government's proposals.
I am grateful that the Secretary of State responded to the letter that my right hon. Friend the Member for West Dorset and I sent her a few weeks ago, giving her notice that that was the course of action we proposed to follow. She seemed concerned that it would lead to much contention and referred to the Countryside Act 1968 where disputes over the reclassification of what used to be known affectionately as RUPPsroads used as public pathswent on for many years; they are now fortunately consigned to history. The Minister may want to repeat the Secretary of State's position, but I would argue two things. First, we are talking about a defined number; we do not know precisely what it is, but it is in the order of 2,000. Secondly, the criteria against which the applications would be judged are clearly set out in our new clause. The Secretary of State would appoint inspectors who would look at the byways and make the necessary decisions. If there is some twist that would make new clause 4 more effective, I shall be the first to say that we shall happily accept it. We are not wedded to the precise wording of the provision, but we believe that if the Secretary of State carried out a review and issued traffic regulation orders it would address the big surge that I have described and which causes concern in almost every county.
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